In
this appeal, from the judgment of the Guwahati High Court, the question of law
requiring consideration is whether an army officer, who has earned pensionary
and other retirement benefits, must forfeit the same on his resigning the job
from the Army.

The
respondent joined the Army Dental corps sometimes in the year 1960. He was
given grading in Army in 1962.

Thereafter
he served in different capacities and was classified as a specialist and had
been promoted to the rank of Lt. Colonel. On 2.1.1984 the respondent wrote a
letter requesting for permission to resign from the service w.e.f. 30.4.1984 or
from an early date. The said letter contained the reasons why he wanted to
resign. The said resignation was accepted by communication dated 24.7.1984 in
which it was stated that the respondent shall stand relieved of all army duties
as early as possible, but not latter than 24.8.1984. In this latter, it was
also mentioned that consequent upon his resignation the respondent shall not be
entitled to gratuity, pension, leave pending resignation and travel concession.

On the
receipt of the aforesaid letter, the respondent wrote a letter dated 18.8.1984
stating that he was not interested in leaving the service. This was followed by
an another letter dated 22.8.1984 wherein the respondent prayed for
cancellation of permission to resign. It was also stated therein that if it was
not possible to cancel such permission, then his application may be treated as
being one for release/pre-mature retirement. These letters were presumably
written because the respondent realised that he was being deprived of pension,
gratuity etc. as a consequence of his resignation. The respondent's letters
dated 18.8.1984 and 22.8.1984 were not accepted and the respondent was
"struck off" the strength on 24.8.1984.

The
respondent soon after writing of letter dated 22.8.1984, filed a writ petition
in the Guwahati High Court being Civil Rule No. 570 of 1984. The relief which
was sought in that Civil Rule related only to the acceptance of his
resignation. Two contentions were urged before the High Court which were (1)
the resignation was not accepted by the competent authority and as such the
acceptance of resignation could not be given effect to and: (ii) the letter of
withdrawal should have been considered by the authority and the petitioner
ought to have been allowed to withdraw the letter seeking the permission for resignation.

This
writ petition was, however, rejected.

The
respondent then filed a fresh writ petition being Civil Rule No. 1994 of 1986
in which it was contended that he should not be deprived of pension and other
benefits. It was contended that the pension was not a matter of grace and as he
had completed the qualifying service, he was entitled to the pensionary and
other benefits.

The
appellants, in its reply before the High Court, relief upon a letter dated
25.4.1981 of the Army Headquarter in which it was, inter alia. stated that if
an officer was permitted to resign his commission, then he would not be
entitled to any terminal benefits such as pension, gratuity and leave pending
resignation.

The Guwahati
High Court vide its judgment dated 25.4.1987 came to the conclusion that it was
unreasonable to deny terminal benefits like pension in cases of resignation
where prior permission was necessary to resign. Without striking down the
contents of the aforesaid letter dated 25.4.1981 it came to the conclusion that
the conduct of the respondent showed that he did not intend to lose his pension
and other terminal benefits. It held that the aforesaid Army Headquarter's
letter, containing the provision of automatic forfeiture of pensionary and
other benefits in case of resignation, did not appear to be reasonable and
could not, therefore, be given effect to. In this connection, it observed that
"as validity of this provision has not been challenged in the present
proceeding, we are leaving the matter only by saying that we are not enforcing
the provision". The High Court, accordingly, allowed the writ petition and
directed the appellants herein to make available to the respondent all the
admissible terminal benefits.

On the
day the judgment was pronounced, a request was made for a certificate to leave
to this Court. This prayer was rejected. Thereafter the High Court suo moto by
order dated 30.4.1987 issued a certificate under Article 134 A (a) of the
Constitution observing that this was a fit case for appeal to this Court under
Article 133(1) of the Constitution. Hence, this appeal.

It has
been first sought to be contended on behalf of the appellant that the second
writ petition should not have been entertained by the Guwahati High Court
because the respondent had earlier filed a writ petition challenging the
acceptance of his resignation but had not claimed any relief with regard to the
terminal benefits. It is fairly conceded by Mr. Goswami, the learned counsel
for the appellant, that this contention was not raised before the High Court
and, in our opinion, it will not be proper, at this late stage, to allow the
Union of India to raise the contention in this appeal for the first time.

It was
then submitted on behalf of the appellant that according to the aforesaid letter
dated 25.4.1981, there was an automatic forfeiture of the terminal benefits on
the resignation of the respondent having been accepted and the High Court erred
in granting relief to the respondent.

It
will be appropriate, at this stage, to refer to the provisions regarding the
grant of terminal benefits to which our attention has been invited. The grant
of pension to the army personnel is governed by "Pension Regulations for
the Army" (hereinafter referred to as "the Pensions Regulations").
These Regulations have been issued under the authority of the Government of
Indian and they apply to the personnel of Regular Army, the Defence Security
Corps and the Territorial Army.

Regulation
22 of the Pension Regulations relates to the grant of pension and is as under:

"An
officer permitted to retire from service may be granted a retiring pension or
gratuity in accordance with the regulations in this chapter, provided that a
retiring gratuity may be granted at the discretion of the President only in an
exceptional case to an officer who is permitted to retire or whose service are
otherwise terminated after completing the minimum qualifying service".

Regulation
25 provides for the qualifying service and is in the following terms:

"25(a)
The minimum period of qualifying service required for a retiring pension is 20
years (15 years in the case of a late entrant see regulation 15). Only
completed years of qualifying service shall count.

(b)
The minimum period of qualifying service for a retiring gratuity shall be 10
years.

The
service which qualifies for pension is provided for in Regulations 26.
Regulation 38 provides that "All service which qualifies in full for
retiring pension also qualifies for gratuity and on the same conditions It
would appear from the aforesaid Regulations that on the completion of the
qualifying service, an officer, like the respondent, would be entitled to get
pension and gratuity. The Regulations, however, contained three provisions
which specifically provide for situations where full amount of pensionary
benefits need not be given. These are Regulations 3.4 and 16 which read as
under:

(3)
The full rate of pension or gratuity provided for in these Regulations shall
not be granted unless the service rendered has been satisfactory. If the
service has not been satisfactory, the competent authority may make such
reduction in the amount of pension or gratuity as it thinks proper.

(4)
Future good conduct shall bean implied condition of every grant of a pension or
allowance.

(16)(a)
When an officer who has to his credit the minimum period of qualifying service
required to earn a pension, is cashiered or dismissed or removed from the
service, his/her pension may, at the discretion of the President, be either
forfeited or be granted at a rate not exceeding that for which he/she would
have otherwise qualified, had he/she retired on the same date.

(b)
When an officer who has to his/her credit the minimum period of qualifying
service required to earn a pension is called upon to retire or to resign or in
the event of his/her refusing to do so is retired from or gazetted out of the
service, he/she may at the discretion of the President be granted a pension at
a rate not exceeding that for which he/she would have otherwise qualified, had
he/she retired on the same date in the normal manner." The mere perusal of
Regulation 3 shows that the competent authority may make a reduction in the
amount of pension or gratuity if the service has not been satisfactory. The
reading of this Regulation clearly shows that normally full rate of pension of
gratuity is to be granted unless the service which is rendered is not
satisfactory. It is not the case of the appellant that the respondent's service
was not satisfactory. Therefore, no reduction of pension or gratuity under
Regulation 3 could have been ordered.

Regulation
4 makes it a condition for the grant of pension or allowance that the conduct
of the officer must be good. There is no suggestion that the conduct of the
respondent was such as to deprive him of the terminal benefits under Regulation
4.

Regulation
16(a) gives the President the power either to forfeit or to reduce the rate of
pension in the event of an officer being cashiered, dismissed or removed from
the service. Under sub-regulation (b) of Regulation 16, if an officer is called
upon to retire on resign, he may at the discretion of the President be granted
a pension at a rate not exceeding what he would have otherwise qualified.

Regulation
to gives the power to the President to reduce or forfeit the pension of an officer
who has to his credit the minimum period of qualifying service only in the
event of his being cashiered, dismissed or removed from the service.

Even
in such a circumstance, there is no automatic forfeiture of pension or
gratuity. An officer whose service is terminated by reason of his being
cashiered, dismissed or removed from the service would normally be entitled to
get his pension though the President has a right to forfeit or reduce the
pension.

Regulation
16 does not cover a case of voluntary resignation. Regulation 16(b) does refer
to a case where an officer who has to his credit the minimum period of
qualifying service being called upon to resign whose pension can be reduced.
Had the Regulation intended to take away the right of a person to the terminal
benefits on his voluntary resigning, then a specific provision similar to
Regulation 16(b) would have been incorporated in the Regulations but this has
not bee done. Once an officer has to his credit the minimum period of
qualifying service, he earns a right to get pension and as the Regulations
stand, that right can be taken away only if an order is passed under Regulation
3 or 16. The cases of voluntary resignations of officers, who have to their
credit the minimum period of qualifying service are not covered by these two
Regulations and, therefore, such officers, who voluntary resign, cannot be
automatically deprived of the terminal benefits.

The
letter of 25.4.1981 issued by the Army Headquarter does state that pensionary
benefits will be lost if an officer resign from service, but it has not been
shown to us that this latter, in any way, supersedes or purports to amend or
modify the aforesaid Regulations. In view of the specific right of pensionary
benefits having granted by the said Regulations no effect need be given to the
letter dated 25.4.1981.

In our
opinion, the decision of the High Court under appeal, whereby the writ petition
filed by the respondent had been allowed, calls for no interference. The appeal
is, accordingly, dismissed with costs. Counsel for Rs. 5,000/- (Rupees Five
Thousand only).